ELYRIA — Assistant Lorain County Prosecutor Tony Cillo has asked the Ohio Supreme Court to bar county Common Pleas Judge James Burge from hearing any case he is handling.
“Because a reasonable and objective observer would harbor serious doubts about Judge Burge’s impartiality, Judge Burge should step aside or be removed,” Cillo wrote in court documents filed Thursday.
Burge said he isn’t biased against Cillo, with whom he frequently sparred when he was a defense attorney before taking the bench in 2007, or anyone else working for Lorain County Prosecutor Dennis Will, who declined to comment Thursday.
Burge said while Cillo has lost arguments over legal issues in his courtroom, he doesn’t believe Cillo has ever lost a trial before him.
He said he would challenge Cillo’s efforts to remove him from the cases of Albert Fine, who is facing a potential death sentence if convicted of killing and dismembering Catherine “Kat” Hoholski last year; Stanley Jalowiec, a death row inmate seeking a new trial; and Shannon Weber, a Wellington woman charged with twice trying to kill her son in 2010 and 2011.
“I’m going to issue an affidavit that indicates that attorney Cillo can get a fair trial in my courtroom anytime,” Burge said.
Burge said the court filing asking for his removal from Cillo’s cases appears to be linked to an ongoing inquiry into his handling of the controversial Head Start child molestation case and other issues being conducted by the Supreme Court’s Office of Disciplinary Counsel. Burge said he’s been told the confidential inquiry is “prosecutor driven.”
“It’s all part of their effort, I believe, to remove me from their lives,” Burge said.
The inquiry became public in January when Burge appeared before the Ohio Parole Board to ask that panel to recommend clemency for Nancy Smith, the bus driver convicted of molesting children on her Head Start bus route in the 1990s. Burge acquitted Smith and her co-defendant, Joseph Allen, in 2009.
Burge has since removed himself from the Head Start case, saying he has a “profound bias in favor of the defense” in that case.
When he was asked why the pair wasn’t returned to prison after the Supreme Court ruled in 2011 that he’d overstepped his authority when he acquitted Smith, Burge replied that Cillo and Smith’s attorney, Jack Bradley, asked him not to do anything until he heard from them.
But Burge also told the Parole Board that Cillo had informed the Disciplinary Counsel that he never said that.
Cillo wrote that Burge’s actions demonstrate bias because the judge “at a minimum, suspects that (I am) involved in pending disciplinary proceedings against him (and) has recently spoken out publicly suggesting (I have) lied to the Disciplinary Counsel.”
Burge, however, denied that the dispute is a factor when Cillo appears in his courtroom.
“I disagree with his memory, just as he disagrees with mine,” Burge said.
Cillo also accused Burge of already having made up his mind about the Jalowiec case, from which he asked Burge to step down in January, citing the disciplinary investigation.
Jalowiec, who was given a death sentence for the 1994 slaying of police informant Ronald Lally, has asked for a new trial based on what he contends is newly discovered evidence, including police and prosecutorial misconduct.
Cillo wrote that Burge was talking to another assistant county prosecutor when the subject of Cillo’s unsuccessful bid to get Burge to remove himself from the Jalowiec case came up.
“To the APA’s recollection, Judge Burge then said (Cillo) thinks Judge Burge would make a ruling based upon (Cillo), when there is a man who certainly deserves a new trial,” Cillo wrote. “An evidentiary hearing on Jalowiec’s motion for a new trial has not yet been held and is pending in Judge Burge’s court.”
Burge vehemently denied that he’s made any sort of decision in the Jalowiec case.
“I’ve never said that in my life. I haven’t expressed an opinion because I haven’t heard the evidence,” Burge said. “I don’t believe an assistant told him that and if he did, it would be false.”
Cillo also said that county Common Pleas Judge Christopher Rothgery removed himself from the Jalowiec case last year after defense attorneys pointed out he filled in for any attorney representing a witness in the case during a hearing nearly two decades ago. Rothgery said he didn’t recall the incident but removed himself from the Jalowiec case to avoid the appearance of impropriety.
At the time Cillo argued that Rothgery should remain on the case.
The death penalty
Burge has fought off previous attempts by Will’s office to remove him from death penalty cases, including in the run-up to the 2008 trial of now-convicted killer Manuel Nieves.
Will argued that Burge’s ruling in two other death penalty cases that the state’s then-three-drug lethal injection method was unconstitutional should bar him from sitting on the three-judge panel that convicted Nieves but spared him a death sentence.
Burge ruled in the cases of now-convicted killers Ruben Rivera and Ronald McCloud that the state should use a massive overdose of sedatives to execute condemned inmates. Ohio now uses execution protocols similar to what Burge suggested.
Although Burge eventually turned over the Rivera case to another judge, he was on the three-judge panel that convicted McCloud. Burge was the lone judge in that case who voted against a death sentence, sparing McCloud, who raped and killed a woman in a church bathroom in 2005, and Cillo complained about how he handled that case.
Burge said because Cillo handles all of the death penalty cases for Will, an order barring him from presiding over cases Cillo is involved in would effectively remove him from hearing any death penalty case.
Attorney Dan Wightman, who is representing Albert Fine, said that’s a real concern about Cillo’s request, which he was aware of, but had not read, as of Thursday.
“It would seem to give them the opportunity to judge shop to some extent,” Wightman said. “They could arbitrarily decide to have him taken off cases.”
He said that Burge hasn’t done anything in the Fine case to make him think the judge favors one side or the other.
Cillo wrote that he fears retaliation from Burge in future hearings. Burge held Cillo in contempt of court in 2007 for calling one of his decisions “sheer lunacy” and for a court filing that accused the judge of deliberately “sandbagging” efforts to win death sentences for Rivera and McCloud.
Cillo apologized and Burge dropped the contempt citation, saying Cillo had a “clean slate.”
Cillo also wrote that in 2010 he was considering challenging Burge when he came up for re-election in 2012 and the judge sent his supervisors a letter, noting that Cillo was considering leaving his job to enter the race. Burge was unopposed in his re-election bid last year.
The concern about retaliation is even more pronounced, Cillo wrote, because after the Disciplinary Counsel requested audio recordings of 10 days’ worth of proceedings in Burge’s courtroom, Burge ordered his court reporter to stop using the recording equipment.
“Without those audio recordings, unless Judge Burge’s court reporter transcribes the every word and interaction between Judge Burge and (I), any evidence of retaliatory statements or actions taken against (me) in his courtroom may be lost,” Cillo wrote.
He also wrote that “there have been instances in the past when conversations occurring in Judge Burge’s courtroom are noticeably missing from the transcripts.”
Burge acknowledged that he told his court reporter, Tracy Reiman, to stop recording the proceedings in his courtroom for several reasons because the equipment picked up everything he and others in the courtroom said, even if it wasn’t on the record.
For instance, Burge said he might make a comment to himself under his breath or engage in a private conversation and it would be recorded because the machine wasn’t turned off.
But he also said Reiman takes down every word that is spoken on the record in his courtroom.
Burge said he has no intention of retaliating against Cillo.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.